This week’s Time magazine features the story of the 9th Circuit’s decision last week denying en banc review of a January ruling that had upheld the police creeping onto the defendant’s driveway in the middle of the night so as to affix a tracking device on his car, a subject I discussed here last Thursday and Friday.  But a decision from the 8th last week indicates that problems with privacy and automobiles aren’t confined to when you’re sleeping.

The traffic stop of Robert Thomas had everything you’d expect:  a bullshit traffic violation (failure to come to a “complete stop” at a stop sign), a high-crime neighborhood, and furtive movements.  Those, coupled with the cop’s observation that Thomas appeared “unusually nervous for a routine traffic stop,” impelled the officer to place Thomas in handcuffs and put him in the back of the police cruiser while he checked the console, where he’d seen Thomas reach.  Sure enough, he discovered an Uzi. 

Well, not quite; he found a digital scale and a small baggie, which appeared to contain cocaine residue.  He placed Thomas under arrest — as if there was some difference between that condition and the one he had been in seconds earlier, which the attentive reader will remember was handcuffed in the back of a police cruiser — and proceeded to conduct a more thorough search of the car, where he found several AK-47′s and a MAC-10 in the back seat. 

Well, not quite.  He found a bag of powder cocaine. 

The trial judge kicked it out, deciding that while the officer had a legitimate concern for his safety because of his observations, those concerns dissipated once he had secured Thomas in the police cruiser.   In State v. Thomas, the 8th reversed, holding that

During a legitimate investigative stop, if a police officer has a reasonable suspicion that an individual is armed, the officer may conduct a limited protective search for the safety of the officer and the public. ***  Further, when the suspect is an occupant of an automobile, police may search those areas of the passenger compartment that could contain a weapon if police have a reasonable articulable suspicion that the suspect is dangerous or may gain immediate control of weapons.

This isn’t a new principle of law; it’s drawn from the seminal Ohio stop-and-frisk case, State v. Bobo, which in turn drew the US Supreme Court decision in Michigan v. Long, both of which presented pretty much the same fact situation. 

Well, not quite.  In Long, the police spotted a knife lying on the floorboard when the defendant got out of the car.  In Bobo, the defendant was still at the vehicle, and within reach of the weapon, when the cop searched for it. 

Should that make a difference?  On the one hand, traffic stops pose a substantial risk to police officers; if you don’t believe me, just Google “traffic stops killed police.”  We’re talking about balancing interests here, and a reasonable argument could be made that whatever privacy interest a person has in protecting the interior of his automobile from a cursory inspection should give way to the societal interest in protecting police officers.

On the other hand…  First, the privacy interest isn’t negligible.  While the courts have insisted that one has a lesser expectation of privacy in an automobile, simply because it requires being driven in public, it’s hard to see how that should apply to a search of the interior.  And that’s not going to be as cursory as it might seem:  the cases hold that the officer has the right to search areas where a weapon may be hidden.  That means under the seats, the glove compartment, the console, and any closed containers in the vehicle (such as a gym bag or briefcase); in fact, it’s hard to discern the difference between a “protective sweep” of the vehicle in that circumstance from a normal search. 

Second, there’s some sleight of hand going on here, and it’s not just Thomas’ “furtive movements.”  The opinion in Thomas – in fact, the opinion in most of the cases like this — makes an implicit assumption that a furtive movement creates a “reasonable suspicion” that the individual is armed.  This, in turn, owes a lot to the widespread belief in the inextricable linkage between guns and drugs.  (And after all, if you’re making furtive movements to hide something in your car, it’s gotta be either drugs or guns, and one’s as good as the other.)  The problem is that while there’s a link between guns and drug trafficking, there’s no discernible linkage between guns and drug possession.  As I’ve mentioned before, the next time you get a case like this, ask the cop in cross-examination how many drug busts he’s made, and how many of those have also involved guns.  The last time I did, the answers were “hundreds” and “five or six,” respectively.

Finally, there’s the protection angle.  As the trial court in Thomas rightly noted, at the time the search of the interior was made, the officer was in absolutely no danger:  Thomas was handcuffed in the back of the cruiser.  The appellate panel sloughs this off with the observation that “as the State has argued, once Thomas was issued a traffic citation, he would be returning to his vehicle and have access to the console.”  So what?  The danger in the traffic stop situation is that the police are going to come across an armed felon, who will shoot them to avoid detection and arrest.  But if that’s going to happen, it’s going to happen at the beginning of the stop, not at the end.  Once Thomas is given the citation and sent on his way, it seems highly unlikely that he’d choose that time to pull out a gun and shoot at the cop.

To be sure, that might be deconstructing the situation a bit too much.  The officer’s removing Thomas from the car, and handcuffing him and putting him in the police cruiser, are at least arguably reasonable acts.  Holding that doing so removed any justification for a search of the interior of the car would create a perverse disincentive:  the cop would know that he could search the car only if the suspect were allowed to remain near it, which is the more dangerous situation.

Thomas best exemplifies the situation with most 4th Amendment cases:  where you wind up on the question depends upon where you came in.  It’s a close call, and a panel which put the balance slightly farther along the spectrum toward privacy would probably have come to a different result.